[Senate Report 118-24]
[From the U.S. Government Publishing Office]
Calendar No. 64
118th Congress } { Report
SENATE
1st Session } { 118-24
_______________________________________________________________________
DISASTER CONTRACTING IMPROVEMENT ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 310
TO ESTABLISH AN ADVISORY GROUP TO
ENCOURAGE AND FOSTER COLLABORATIVE
EFFORTS AMONG INDIVIDUALS AND ENTITIES
ENGAGED IN DISASTER RECOVERY RELATING
TO DEBRIS REMOVAL, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
May 11, 2023.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
39-010 WASHINGTON : 2023
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
ALEX PADILLA, California RICK SCOTT, Florida
JON OSSOFF, Georgia JOSH HAWLEY, Missouri
RICHARD BLUMENTHAL, Connecticut ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Christopher J. Mulkins, Director of Homeland Security
Naveed Jazayeri, Senior Professional Staff Member
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Kendal B. Tigner, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 64
118th Congress } { Report
SENATE
1st Session } { 118-24
======================================================================
DISASTER CONTRACTING IMPROVEMENT ACT
_______
May 11, 2023.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 310]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 310) to establish
an advisory group to encourage and foster collaborative efforts
among individuals and entities engaged in disaster recovery
relating to debris removal, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary.............................................. 1
II. Background and Need for the Legislation.......................... 2
III. Legislative History.............................................. 4
IV. Section-by-Section Analysis of the Bill, as Reported............. 4
V. Evaluation of Regulatory Impact.................................. 5
VI. Congressional Budget Office Cost Estimate........................ 5
VII. Changes in Existing Law Made by the Bill, as Reported............ 6
I. Purpose and Summary
S. 310, the Disaster Contract Improvement Act, requires the
Federal Emergency Management Agency (FEMA) Administrator to
establish an advisory group comprised of individuals and
government entities that engage in debris removal in disaster
recovery efforts. The advisory group must determine whether
current procedures and guidance in place are sufficient to
provide debris removal contract oversight. If current
procedures are not sufficient, the bill requires FEMA, in
consultation with the advisory group, to develop and implement
recommendations to improve current guidance and procedures
concerning debris removal contracts. The bill requires FEMA to
conduct trainings and outreach on any guidance or support
materials developed under this section.
The bill also requires the Government Accountability Office
(GAO) to conduct a study about the use, benefits, and
challenges of advance contracts that state, local, and tribal
governments have entered into for debris removal. GAO would
also study the process for setting reimbursement rates for
debris removal programs; the use of penalties for violations of
law and regulations relating to debris removal; and fraud,
waste, and abuse relating to debris removal programs; and would
make recommendations for improving oversight and fraud
prevention across debris removal programs.\1\
---------------------------------------------------------------------------
\1\On July 12, 2022, the Committee approved S. 3512, the Disaster
Contract Improvement Act, with an amendment in the nature of a
substitute. That bill, as amended, is substantially similar to S. 310.
Accordingly, this committee report is, in many respects, similar to the
committee report for S. 3512. See S. Rept. 117-128.
---------------------------------------------------------------------------
II. Background and the Need for Legislation
Every year, communities across the United States are
affected by disasters including hurricanes, earthquakes,
tornadoes, volcanoes, floods, wildfires, and winter storms.
After a disaster, when a region turns its attention to
rebuilding, one of the greatest challenges often involves
properly managing disaster-related debris. Post-disaster debris
can include trees, limbs, and shrubs; manufactured structures
(e.g. collapsed homes, buildings, or bridges); and personal
property. Residents' ability to return to the area and live in
a safe and healthy environment may depend on how quickly and
effectively a community manages its debris.
A number of federal agencies are authorized to support
communities with disaster debris removal, including FEMA and
the U.S. Army Corps of Engineers.\2\ During debris removal
operations, FEMA serves two primary roles. First, FEMA provides
funding to eligible applicants for debris removal activities.
Second, FEMA may approve direct federal assistance to a state
or local government that does not have the capacity to respond
to a presidentially declared disaster. Federal funding for
disaster-related debris removal is coordinated and provided by
FEMA primarily through its Public Assistance (PA) Grant
Program. Under that program, FEMA provides grants to reimburse
state, tribal, and local governments and certain types of
private nonprofit organizations for their response and recovery
efforts.\3\
---------------------------------------------------------------------------
\2\Congressional Research Service, Disaster Debris Management:
Requirements, Challenges, and Federal Agency Roles (R44941), at 1
(Sept. 6, 2017).
\3\Id. at 9.
---------------------------------------------------------------------------
When a state, local, territorial, or tribal government
receives PA grant funding for debris removal services, it is
able to procure a contract for those services. According to
FEMA's Public Assistance Debris Monitoring Guide, applicants
are primarily responsible for supervising the performance of
the contract.\4\ However, FEMA still has responsibility to
ensure federal funds are awarded appropriately. Given the
pressure to distribute vast amounts of funds quickly, FEMA's
disaster assistance programs are susceptible to fraud, waste,
and abuse.
---------------------------------------------------------------------------
\4\Federal Emergency Management Agency, Public Assistance Debris
Monitoring Guide: March 2021, at IV (Mar. 2021) (https://www.fema.gov/
sites/default/files/documents/fema_debris-monitoring-guide_sop_3-01-
2021.pdf).
---------------------------------------------------------------------------
An audit of debris removal operations by the Department of
Homeland Security Office of Inspector General (DHS OIG) found
deficiencies in FEMA's processes. Following the destruction
left by Hurricane Irma when it struck Florida in September 2017
as a Category 4 hurricane, the DHS OIG conducted an audit to
examine the extent to which FEMA ensured procurements for
Monroe County debris removal operations met federal procurement
requirements and FEMA guidelines.\5\ The DHS OIG found that,
while local entities must meet federal procurement standards
when soliciting contracts for debris removal prior to or
immediately following an incident, FEMA did not ensure
procurements for debris removal operations projects in Monroe
County met federal procurement requirements and FEMA
guidelines.\6\
---------------------------------------------------------------------------
\5\Department of Homeland Security, Office of Inspector General,
FEMA's Procurement and Cost Reimbursement Review Process Needs
Improvement (OIG-21-26), at III (Mar. 4, 2021).
\6\Id. at 5.
---------------------------------------------------------------------------
Specifically, the DHS OIG found the following: (1) FEMA did
not adequately review local entities' debris removal
procurements; (2) FEMA reimbursed local entities for
questionable removal costs; (3) training and quality assurance
weaknesses impeded FEMA from ensuring debris procurements and
costs met federal requirements; and (4) FEMA improperly
reimbursed debris procurements and approved questionable
costs.\7\ The DHS OIG attributed FEMA's inadequate reviews and
reimbursement of questionable costs to weaknesses in its
training of project review staff and its quality assurance
process, and it made recommendations to strengthen and improve
training requirements and review processes.\8\
---------------------------------------------------------------------------
\7\Id. at 5-9.
\8\Id. at 5-6 and 10.
---------------------------------------------------------------------------
A separate audit performed by the DHS OIG in 2019 found
that FEMA's workforce is not compliant with the annual fraud
prevention and awareness training required by the Post-Katrina
Emergency Management Reform Act of 2006.\9\ According to the
DHS OIG, 93 percent of FEMA employees failed to complete the
mandatory fraud training between April 30, 2017 and May 1,
2018.\10\ Although FEMA stated that internal controls were in
place to ensure compliance with all mandatory training, the DHS
OIG determined that those internal controls remain inadequate,
which ``can have a detrimental effect on FEMA's overall fraud
prevention efforts, and could lead to delays in detecting and
reporting fraud, waste, and abuse of disaster assistance
funds.''\11\
---------------------------------------------------------------------------
\9\Department of Homeland Security, Office of Inspector General,
FEMA Must Take Additional Steps to Demonstrate the Importance of Fraud
Prevention and Awareness in FEMA Disaster Assistance Programs (OIG-19-
55), at 7-8 (July 2019).
\10\Id. at 7-8.
\11\Id. at 8.
---------------------------------------------------------------------------
In the report, DHS OIG recommended that FEMA's Chief
Learning Officer update all guidance, manuals, and training
materials to provide consistent direction for reporting fraud
and suspected fraudulent activity in the agency's disaster
assistance programs.\12\ FEMA concurred with DHS OIG's
recommendation and said it would ``ensure that the training
curriculum received from the FEMA Office of the Chief Security
Officer (OCSO) is made available to all employees each
reporting year.''\13\
---------------------------------------------------------------------------
\12\Id. at 10-11.
\13\Id. at 12.
---------------------------------------------------------------------------
This bill seeks to improve the disaster contracting process
on the federal, state, and local levels of government to
mitigate waste, fraud, and abuse of federal assistance. This
bill would ensure FEMA collaborates with state, tribal, and
local governments, as well as other subject matter experts, to
review and issue necessary guidance and help streamline debris
removal efforts. Increased cooperation between FEMA and
partners engaged in disaster recovery efforts will help ensure
debris cleanup efforts after extreme weather events are more
efficient and use taxpayer dollars more effectively. The bill
also requires GAO to study and provide decision makers with
information on the benefits and challenges of using advance
contracts for debris removal and recommendations to improve
oversight and fraud prevention across debris removal programs.
III. Legislative History
Senator Rick Scott (R-FL) introduced S. 310, the Disaster
Contract Improvement Act, on February 9, 2023, with original
cosponsors Senator Gary Peters (D-MI) and Senator Jacky Rosen
(D-NV). The bill was referred to the Committee on Homeland
Security and Governmental Affairs.
The Committee considered S. 310 at a business meeting on
March 29, 2023. The bill was reported favorably by roll call
vote of 11 yeas to 0 nays, with Senators Peters, Hassan, Rosen,
Padilla, Ossoff, Blumenthal, Paul, Lankford, Romney, Scott, and
Hawley voting in the affirmative, and with Senators Carper,
Sinema, Johnson, and Marshall voting yea by proxy, for the
record only.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section designates the name of the bill as the
``Disaster Contract Improvement Act.''
Section 2. Oversight on debris removal
Subsection (a) defines the terms ``Administrator'' and
``debris removal program.''
Subsection (b) requires the FEMA Administrator to establish
an advisory working group to encourage and foster collaborative
efforts among individuals and entities engaged in disaster
recovery relating to debris removal. The working group is to be
comprised of representatives from FEMA; the Army Corps of
Engineers; the Natural Resources Conservation Service of the
Department of Agriculture; state, tribal, and local
governments; and subject matter experts in debris removal.
Subsection (c)(1) requires the FEMA Administrator to work
with the advisory working group and determine whether the
guidance and procedures in effect on the date of enactment of
this bill are sufficient to provide debris removal contract
oversight.
Subsection (c)(2) requires the FEMA Administrator, in
consultation with the advisory working group, to develop and
implement additional debris removal contracting, planning, and
management guidance and procedures if they determine the
guidance and procedures described in subsection (c)(1) are
insufficient.
Subsection (d) requires the Administrator to conduct
outreach to state, tribal, and local governments about guidance
and procedures developed under this bill.
Subsection (e) requires GAO to conduct a study that
examines: the adoption rate of advance contracts for debris
removal by state and local governments; the benefits of advance
contracts for debris removal; processes for reporting and
information sharing related to advance contracts for debris
removal; reimbursement rates for debris removal programs; use
of penalties for violations of law and regulation; and fraud,
waste and abuse relating to debris removal programs. The
subsection also requires GAO to make recommendations concerning
improvements to oversight and fraud prevention.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 310 would direct the Federal Emergency Management Agency
(FEMA) to establish an advisory working group, consisting of
representatives from FEMA, the Army Corps of Engineers, the
Department of Agriculture, state and local governments, and the
debris services contractor industry. The working group would
review current agency guidance on debris removal and implement
revisions designed to streamline the contracting and debris
removal process. Under the bill, FEMA also would disseminate
the materials developed by the working group to state and local
governments.
The bill also would require the Government Accountability
Office (GAO) to examine the use and adoption rate of advance
contracts for debris removal and recommend ways to improve the
contracting process.
Using information from FEMA and GAO about the cost of
similar activities, CBO estimates that implementing S. 310
would cost $1 million over the 2023-2028 period, most of which
would be incurred in 2024 and 2025. Any spending would be
subject to the availability of appropriated funds.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
VII. Changes in Existing Law Made by the Bill, as Reported
This legislation would make no change in existing law,
within the meaning of clauses (a) and (b) of subparagraph 12 of
rule XXVI of the Standing Rules of the Senate, because this
legislation would not repeal or amend any provision of current
law.
[all]